BJO16 v Minister for Immigration

[2018] FCCA 2376

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJO16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2376

Catchwords:
MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (IAA) affirming decision not to grant applicant Safe Haven Enterprise visa (SHEV) – applicant arrived in Australia by boat at the Territory of Ashmore and Cartier Islands – after judgment was reserved the Full Federal Court pronounced orders that the included a declaration that purported appointment of a port as a proclaimed port an area of waters within the Territory of Ashmore and Cartier Islands by notice published in the Commonwealth Gazette No GN 3 on 23 January 2002 is invalid – consequence of Full Federal Court’s orders is that IAA had no jurisdiction to review applicant’s claims for a SHEV – declarations made and IAA’s decision quashed

Cases cited:

DBD16 v Minister for Immigration and Border Protection [2018] FCCA 1801

DBB16 v Minister for Immigration and Border Protection (No:NSD354/2017)

Applicant: BJO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1433 of 2016

Judgment of: Judge Manousaridis

Hearing date: 10 August 2017

Date of Last Submission: 22 August 2018

Delivered at: Sydney

Orders Pronounced: 22 August 2018

Delivered on: 27 August 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitor for the First  Respondent: Ms B Rayment of Sparke Helmore

THE COURT DECLARES THAT:

1. The purported appointment of a port as a proclaimed port, an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth Gazette No GN 3 on 23 January 2002 is invalid.

2. The applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (Cth).

3. The applicant has not been notified pursuant to s.66 of the Migration Act 1958 (Cth) of the decision of a delegate of the Minister for Immigration and Border Protection dated 2 May 2016.

THE COURT ORDERS THAT:

1. There issue a writ of certiorari quashing the decision of the Second Respondent made on 26 May 2016.

2. The first respondent pay to the applicant such costs as the applicant may be entitled to recover as an unrepresented litigant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1433 of 2016

BJO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. On 22 August 2018 I made declarations and an order quashing the decision of the second respondent (IAA) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (Class XE Subclass 790) visa (SHEV), indicating that I would publish my reasons at a later time. These are my reasons.

2. I made the declarations and orders in a proceeding the applicant commenced on 6 June 2016. I heard the application on 10 August 2017 at the conclusion of which I listed the matter for judgment at 9.30 am on 1 September 2017. On 31 August 2017, however, at my request, my associate sent an email to the parties inviting further submissions about the matters raised in the email. Those matters related to the manner in which the applicant entered Australia. On the material that was before me it was apparent the applicant arrived on a boat with a particular code name, and that he arrived in Australia at an “excised offshore place”.[1] I vacated the listing for judgment, and judgment in the matter otherwise stood reserved.

   [1] CB143

3. In response to the invitation contained in my associate’s email, the Minister provided written submissions. I did not consider delivering judgment in this matter until after Judge Smith handed down his decision on 11 July 2018 in DBD16 v Minister for Immigration and Border Protection,[2] and, on 6 August 2018 the Full Federal Court in DBB16 v Minister for Immigration and Border Protection (No:NSD354/2017) pronounced the orders (Full Federal Court Orders) which included the following:

   [2] [2018] FCCA 1801

   1.The appeal be allowed.

   2.Order 1 made by Judge Driver on 1 March 2017 be set aside and in lieu thereof the following declarations and orders be made:

   THE COURT DECLARES THAT:

   1.The purported appointment of a port as a proclaimed port, an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth Gazette No GN 3 on 23 January 2002 is invalid.

   2.The applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (Cth).

   3. The applicant has not been notified pursuant to s.66 of the Migration Act 1958 (Cth) of the decision of a delegate of the Minister for Immigration and Border Protection dated 12 July 2016.

   THE COURT ORDERS THAT:

   4. There issue a writ of certiorari quashing the decision of the Second Respondent made on 16 September 2016.

   5. The first respondent pay to the applicant such costs as the applicant may be entitled to recover as an unrepresented litigant.

4. When I came to consider the matter and, in particular, when I considered the written submissions the Minister provided in response to my invitation, it was not apparent whether the applicant had entered or purported to first enter Australia through the Territory of Ashmore and Cartier Islands. If the applicant had so entered Australia, I formed the view that, given the Full Federal Court Orders, the application would have to be disposed of by my making orders to the effect of the declarations contained in order 2 of the Full Federal Court Orders and otherwise to quash the IAA’s decision.

5. Accordingly, on 17 August 2018, at my request, my associate sent the following email to the parties:

   This matter is listed for directions at 10.15 on Wednesday 22 August 2018 before Judge Manousaridis in Court 8.1, 80 William Street, Sydney. You must attend Court at this time.

   The purpose of the listing is:

   (a)for his Honour to be informed of the identity of the “excised offshore place” at which the applicant entered Australia, and if the “excised offshore place” at which the applicant first purported to enter Australia is the Territory of Ashmore and Cartier Islands; and

   (b)if the “excised offshore place”  at which the applicant first purported to enter Australia is the Territory of Ashmore and Cartier Islands, for his Honour to hear submissions why, in light of the judgment of Judge Smith in DBD16 v Minister for Immigration and Border Protection [2018] FCCA 1801, and the orders made by the Full Federal Court on 6 August 2018 in the matter of DBB16 v Minister for Immigration and Border Protection (No:NSD354/2017) (Orders), the application should not be disposed of by his Honour making declarations to the effect contained in the Orders, and making an order quashing the Authority’s decision.

6. The matter came before me on 22 August 2018. The applicant, who is not legally represented, appeared with the assistance of an interpreter. Ms Rayment appeared for the Minister. Ms Rayment informed me that the applicant did enter Australia through the Territory of Ashmore and Cartier Islands, and that the applicant in this matter had in fact arrived on the same boat as the applicant in BDB16. Ms Rayment also informed me that the Minister does not consent to my making declarations to the effect of those made in DBB16, but recognises that this Court is bound by the Full Federal Court’s orders in DBB16. Ms Rayment, however, formally submitted that the Full Federal Court’s decision in DBB16 and Judge Smith decision in BDB16 are wrong.

7. After hearing Ms Rayment’s submissions I formed the view that, given the applicant before me arrived in Australia through the Territory of Ashmore and Cartier Islands, I was bound by the Full Federal Court’s orders in DBB16. I therefore make declarations to the effect of those the Full Federal Court made in DBB16.

8. After explaining to the applicant as best I could the legal issues that arose as a consequence of the Full Federal Court’s Orders, I informed the applicant that I proposed to make orders to the effect of those orders. The applicant did not oppose my making such orders. I then made the declarations and orders to which I refer in paragraph 1 of these reasons.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 27 August 2018